Mediation is an informal approach to resolving divorce issues where the parties deliberate and negotiate before a neutral third party about matters such as property division, alimony, child custody, and child support. The neutral third party assumes the role of the mediator, where they help the parties focus on the pertinent issues of the divorce. The mediator does not have the authority to render legally binding judgments or compel the parties to act a certain way.
Mediators are typically experienced legal professionals with a background in family law. An experienced mediator can help make sure the parties don’t lose sight of what’s important, understanding that the fairest solution almost always requires some sort of compromise. It’s natural for someone to grow fatigued from making concession after concession in a divorce. A good mediator reminds the parties about the benefits of their compromises in addition to the legal implications of their proposed solutions.
For example, when the parties start discussing child support obligations, a good mediator will remind them that an agreement that adversely affects the child’s right tor receive financial support violates public policy.
After a successful mediation, the parties will prepare a divorce settlement reflecting the results of their negotiations. A judge enters a final divorce decree with official court orders based on the settlement’s terms. Unlike litigation, the details of the parties’ negotiations remain private.
Traditional litigation is based on the “adversarial system” of justice. Like personal injury lawsuits and criminal cases, the parties are positioned against each other. Each party’s attorney must give nothing short of their full-throated support and advocacy for their client’s interests. While this system may work for many different cases and conflicts, it can become a problem for divorces—especially when the parties adopt a win-lose mentality.
Collaborative divorces try to steer clear of the adversarial approach to resolving issues. Like mediation, collaborative divorce is an informal process that aims at private settlement. Collaborative divorce proceedings often involve a neutral third party who acts as a mediator. However, collaborative attorneys aren’t supposed to act as zealous advocates with the goal of “winning” at the expense of the “opposing party.” Instead, collaborative lawyers try to protect their client’s interests through cooperation with the other party and their attorney.
Because collaborative attorneys inhabit nontraditional roles with arguably different ethical duties than adversarial attorneys, a collaborative attorney is disqualified from representing their client in an adversarial capacity in subsequent litigation if the collaborative process fails.
This method of ADR comes in two forms: binding and non-binding arbitration. This sections focuses on binding arbitration.
The arbitration process is a little more formal than mediation and collaborative divorce. Arbitration also involves a neutral third party—the arbitrator—but act more like judges, unlike mediators. An arbitrator—typically a retired legal professional—is responsible for rendering findings and judgments that legally bind the parties.
For arbitration to be binding, the parties must execute an arbitration agreement where they consent to be bound by the arbitrator’s judgment. Unlike mediation and collaborative law, arbitration mirrors the traditional adversarial approach to litigation. As a result, the parties’ attorneys act closer to how they would in court. However, unlike traditional litigation, arbitration proceedings are kept private. Only the arbitrator’s findings and rulings are of public record.
Voluntary Trial Resolution
The parties can hire a private legal professional to serve as the judge in their divorce. Many Hollywood celebrities use private judges in their divorces because of the privacy, convenience, and efficiency they provide. In Florida, this is known as voluntary trial resolution (VTR).
This process is just as formal as a court trial because cases remain subject to Florida’s rules of civil procedure and evidence. However, VTR is not subject to the calendar restrictions of public courts, allowing the parties to expedite their divorce. Furthermore, the parties can get the benefit of a formal trial in the comfort of their own home or the conference room at a law firm.
Call The Virga Law Firm, P.A. to Learn More
Each divorce involves a unique set of circumstances. An attorney with experience using different ADR methods is in the best position to determine whether litigation or a specific ADR method is appropriate for your case. To learn how ADR might benefit your divorce, call The Virga Law Firm, P.A. to speak with a member of our legal team today.
Call us at (800) 822-5170 or contact us online to get started. We accept calls 24/7.